Community Care & Health

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Community Care and Health Team

The need for lawyers specialising in community care and health law - with cross-disciplinary expertise in discrimination, mental health, mental capacity, prisons, education, housing, freedom of information, social security, EU and human rights law - has never been greater.

Disputes about the provision of community care and health care services are increasingly common as budgets are cut and scarce resources are stretched ever thinner.

Those who suffer the most are vulnerable people with the greatest needs - disabled adults and children and their carers, old people, those with mental disorder or incapacity, vulnerable prisoners and other detainees, asylum-seekers and migrants.

Issues may arise out of a failure to carry out a suitable assessment of needs; the non-provision of suitable services to meet those needs; inadequate direct payments or individual budgets; a disputed age assessment; eligibility for care services generally, whether of adults, asylum-seekers and migrants, children leaving care or prisoners; the non-provision of healthcare services and essential medication (such as the Herceptin litigation); closure or reorganisation of services (day centres, residential homes or hospital provision) and disputes between public authorities as to their respective responsibilities to provide community care or healthcare services.

Public law challenges by way of judicial review or in the tribunals are a key battleground where these disputes are resolved, although individuals must often first navigate a complex array of complaints mechanisms and Ombudsmen appeals.

These cases often arise in the context of other disputes requiring legal advice and representation, such as the care of mentally disordered and incapacitated persons, the detention of prisoners and asylum-seekers and migrants, complex clinical negligence claims, family proceedings and disputes around the provision of education for children with special educational needs.

The legal framework within which these issues fall to be determined is extremely complex.

Individuals affected by these issues - and the public authorities struggling to allocate their scarce resources within the legal framework - require high quality advice and representation. The Doughty Street Community Care and Health Team fields barristers with the necessary range of expertise at all call bands and we advise and appear at every level from tribunal hearings and emergency applications for interim relief in the Administrative Court to cases in the Supreme Court and beyond. Our team members have been in most of the leading cases in this field: for a list click here. There is considerable overlap with other specialist teams such as Housing and Social Welfare, Mental Health, Court of Protection, Immigration, Prisons and Public Law and we can draw on those resources as necessary. Underpinning our work is our commitment to excellence; to human rights; to access to justice; to combating discrimination and to enhancing equality and diversity.

Members of the team are authors of key publications in the field including "Disabled children: a legal handbook" (Steve Broach) and "Children in Need: local authority support for children and families" (Ian Wise QC, Steve Broach, Caoilfhionn Gallagher, Alison Pickup, Ben Silverstone and Azeem Suterwalla). They also contribute to the Legal Action Group 'Community Care Law Reports' (Steve Cragg, Paul Bowen and Kate Markus), the Legal Action Group Bulletin (Martin Westgate QC and Kate Markus) and the Elder Law Journal (Steve Cragg). Members of chambers are on the executives of or otherwise involved with the Administrative Law Bar Association, the Human Rights Law Association, the Social Security Practitioners Association, the Immigration Law Practitioners Association, and the Public Law Project. The Team includes trained mediators, and team members can assist in community care and health related mediations.

Team members have also been nominated for, or received, awards for their work in these, and related, areas of law:
Legal Aid Lawyer of the Year Awards (LALYs): Steve Broach (Young Legal Aid Barrister of the Year, 2011); Mark Henderson (Legal Aid Barrister of the Year, 2010); Alison Pickup (Young Legal Aid Barrister (shortlisted), 2010); Robert Latham (Legal Aid Barrister, 2008), Alison Gerry (Young Legal Aid Barrister, 2007); Paul Bowen (Legal Aid Barrister (shortlisted), 2007); Ruth Brander (Young Legal Aid Barrister, 2006)
Law Society Excellence Awards: Paul Bowen, Advocate of the Year, 2009
Liberty/ JUSTICE Human Rights Awards: Steve Cragg, Human Rights Barrister of the Year, Shortlisted 2010
Chambers & Partners Bar Awards: Steve Cragg, Public and Administrative Law Barrister of the Year, Shortlisted 2010

In 2009, we opened offices in Manchester and Bristol to broaden our geographical reach and to service the new regional offices of the Administrative Court.

Our clerks have extensive experience of courts and tribunals at all levels. As a result of the large number of applications for judicial review handled by Doughty Street Chambers, the clerks have detailed knowledge of the practice and procedure of the Administrative Court and can assist in listing emergency applications.

The team is supported with a fully equipped library, a qualified librarian and the services of an IT manager. Chambers has access to Westlaw, LexisNexis, Lawtel, Smith Bernall and a wide range of other on-line materials. Paperwork can be provided by e-mail or disk to meet individual solicitors' requirements.

Members of the team give seminars, lectures and training in all areas of community care and healthcare law as well as contributing to legal and other publications. We organise a series of CPD-accredited practitioner seminars in our training room. To view a list of our forthcoming seminars please click here. For further details please go to our Seminars and Events section.

Team Members

Seminars & CPD

• s.117 Mental Health Act 1983 & Community Care

  Wednesday 21 March 2012 from 18:30 to 20:00

  Chair: Tracey Bloom , Doughty Street Chambers Speakers: Kate Markus & Aswini Weereratne , Doughty Street Chambers Venue: 53-54 Doughty Street, London, WC1N 2LS Cost: Free CPD: 1.5 …

  
  

Cases

Adult Social Care

R (McDonald) v Kensington and Chelsea [2011] UKSC 33 (Supreme Court) Appeal concerning whether a decision to terminate night-time carer support for a disabled woman by reliance on the provision of incontinence pads is compatible with the authority's obligations in domestic community care and disability discrimination law and under Article 8 ECHR.

R (KM) v Cambridgshire County Council [2011] EWCA Civ 682 (Court of Appeal) Appeal against allocation of funding to a severely disabled adult under a Resource Allocation Scheme (RAS). Application made for leave to appeal to Supreme Court.

R (W, M and others) v Birmingham CC [2011] EWHC 1147 (Admin) (Administrative Court) Successful challenge to decision to move to 'critical only' eligibility for adult social care. Claim succeeded in relation to flawed consultation and breach of the disability equality duty (DDA 1995 s 49A)


R (W) v Croydon LBC (2011) 14 C.C.L. Rep. 315 (Administrative Court) Successful challenge to decision to move incapacitated adult from care home with insufficient consultation (Stephen Cragg)

R (H) v A City Council [2011] EWCA Civ 403 (Court of Appeal) Successful challenge to disclosure of information by social services department and breach of Art 8

R (B and others) v Worcestershire County Council [2010] 3 CCLR 13 (Administrative Court) Successful challenge to closure of adult day care centres on grounds of inadequate consultation.

R (Chavda) v London Borough of Harrow (2008) 100 BMLR 27; [2008] ACD 31 (Administrative Court) Successful challenge to proposed cuts to community care services, and the disability equality duty.

YL v Birmingham City Council [2007] 3 WLR 112 (House of Lords) whether a privately owned care home performing functions of a public nature for the purposes of the Human Rights Act 1998

R (Berry) v Cumbria County Council [2007] EWHC 3144 (Admin) (Administrative Court): Legality of decision to introduce charges for day care centres on grounds of inadequate consultation.

Lambeth LBC v Ireneschild (2007) HLR 34; (2006) 9 CCLR 686 (Court of Appeal): Legality of community care assessment, including: the application of the FACS guidance; what reports the authority was bound to take into account as relevant considerations; and what procedural fairness required.

R (J) v Southend Borough Council (2007) 10 CCLR 407 (Administrative Court) The defendant BC, which operated a day centre for learning disabled adults, did not owe any duty under community care legislation or Articles 8 and/ or 14 ECHR to long-term users of the day care centre who were not 'ordinarily resident' in its catchment area.

R (Bishop) v Bromley LBC [2006] EWHC 2148 Admin, (Administrative Court), challenge to the lawfulness of the closure of an Old People's Day Care centre.


R (HP and KP ) v. LB Islington [2004] EWHC 07 (Admin) (Administrative Court): Successful judicial review of a decision not to provide community care services to a mentally ill person on the grounds that they did not have a severe and enduring mental illness without considering the need for generic community care services. Consideration given to the relationship between the Care Programme Approach and community care obligations.

R (J) v LB Enfield and Secretary of State for Health (2002) 5 CCLR 434; [2002] 2 FLR 1 (Administrative Court): Successful judicial review of decision not to provide accommodation under section 21 National Assistance Act 1948 because of inadequate consideration of risk to health. Section 2 Local Government Act 2000 will require the provision of accommodation where necessary in order to achieve compatibility with Convention rights, consideration given to the requirements of article 8 in the context of a destitute mother and child, and to the circumstances in which a declaration of incompatibility will be made.

R v Gloucestershire County Council ex p Barry [1998] AC 581 (House of Lords) Taking resources into account when assessing need for services for disabled people

Health Care

R (Booker) v NHS Oldham (2011) 14 C.C.L. Rep. 315 (Administrative Court) Successful case confirming that NHS services are free at point of delivery even where alternative funding available.

R (G) v. Nottinghamshire Mental Health NHS Trust; R (N) v. Secretary of State for Health [2009] EWCA Civ 795 (Court of Appeal), joined challenges to the smoking ban introduced in psychiatric hospitals by the Smoke-free (Exemptions and Vehicles) Regulations 2007 reg.10(3), finding that the smoking ban did not violate Article 8 alone or taken together with Article 14. Currently on appeal to the Supreme Court.

R (Harrison) v Secretary of State for Health; R (Garnham) v Secretary of State for Health [2009] EWHC 574 (Admin) (Administrative Court). The NHS Act 2006 does not empower the Secretary of State to make direct payments to those receiving NHS Continuing Care services, and it was not necessary to read such a power into the 2006 Act to comply with Article 8 taken together with Article 14.

Dorset Healthcare NHS Foundation Trust v. MH [2009] UUKUT 4 (AAC) (Upper Tribunal). This was the first appeal to the newly formed Upper Tribunal from the new First-Tier Tribunal (Mental Health) (formerly the Mental Health Review Tribunal) concerning the ambit of the duty on an NHS Trust to disclose information to a patient in Tribunal proceedings to which a non-disclosure duty may attach under the Data Protection Act 1998 and under Article 8 ECHR. The Upper Tribunal gave guidance generally as to the procedure to be adopted.

Moss v HM Coroner for the North and South Districts of Durham and Darlington [2008] EWHC 2940 (Admin) (Administrative Court) The status of GPs as agents of the state for the purpose of Article 2 ECHR

R (Grogan) v Bexley NHS Care Trust [2006] BLGR 491 (Administrative Court) Leading case on health/social services divide.

R (T) v Haringey LBC (1) Haringey Teaching NHS PCT (2006) 9 CCLR 58; [2005] EWHC 2235 (Admin) (Administrative Court), Interrelationship between duties of PCT under National Health Service Act 1977 and of Local Authority under Children Act 1989, Chronically Sick and Disabled Persons Act 1970 and section 49 Health and Social Care Act 2001 to a disabled child.


R (Gunter) v S.W.Staffs PCT [2006] 9 CCLR 121 (Administrative Court) Power of PCT to use a voluntary organisation such as a User Independent Trust to provide health services.

Rogers v Swindon NHS Primary Care Trust [2006] 1 WLR 2649 (Court of Appeal) Case establishing unlawfulness of decision not to provide breast cancer drug Herceptin.

R (F) v Oxfordshire Mental Healthcare NHS Trust (1) Oxford Health Authority (2), [2001] EWHC Admin 535 (Administrative Court), a patient detained under the Mental Health Act 1983 is no higher a priority for treatment than a person seeking voluntary treatment, notwithstanding her treatment was recommended by her RMO.

Children in Need

R (HH) v City of Westminster Magistrates Court [2011] EWHC 1145 (Admin) (Divisional Court): best interests of affected children when both parents face simultaneous extradition; first extradition case in which affected third parties (the children) granted intervener status.

R (A) v Croydon LBC [2009] 1 WLR 2557 (Supreme Court) Where a local authority determination of the age of a young person is disputed, it is for the court to decide whether young person is a child as a question of fact.


R (G) v Southwark LBC [2009] 1 WLR 34 (House of Lords) Where qualifying conditions are met, the duty to accommodate children under Children Act 1989 s 20(1) takes precedence over any other duty.

R (JL) v Islington LBC [2009] EWHC 458 (Admin) (Administrative Court) successful challenge to Islington's eligibility criteria for short break services. Case had national consequences requiring all local authorities to review their eligibility criteria used to limit access to services for disabled children.

R (B) v Barnet LBC [2009] EWHC 2842 (Admin) (Administrative Court) successful application for judicial review in relation to breaches of care planning obligations and educational duties for disabled child with complex needs.

R (M) v Birmingham City Council [2009] 1 F.L.R. 1068 (Administrative Court): Successful challenge to a decision refusing resident order allowance to an adult with whom a child lives pursuant to a residence order, although the challenge as to the legality of the policy itself was unsuccessful.

R (G) v Nottingham City Council and Nottingham University Hospital [2008] EWHC 152 and 400 (Admin) (Administrative Court): unlawful removal of newborn baby from his mother (a care leaver) without lawful authority; interaction of duties to mother and child under Article 8, the common law and Children Acts 1989 and 2004.

R (S) v Sutton LBC (2007) 10 CCLR 615 (Court of Appeal): this remains the leading case on local authorities' duties to homeless children prior to and upon their release from custody; s 20 duty arises prior to release.


D v Southwark LBC [2007] 1 FLR 2181 (Court of Appeal) Successful claim concerning s20 Children Act 1989 and duty to maintain looked after children, placed with friends and relatives by local authority.

R (M) v Gateshead Council [2006] QB 650 (Court of Appeal) Local authority duties to accommodate children detained at police station.


R (G) v Barnet LBC [2004] 2 AC 208 (House of Lords) Nature of duty under s17 Children Act 1989.

Support for Asylum-Seekers

R (O) v Barking and Dagenham LBC [2010] EWCA Civ 1101 (Court of Appeal) successful appeal in relation to the provision of accommodation by local authorities to former relevant children and the interplay with the asylum support provisions.

Social Security Law

R (EM) v. Department of Work and Pensions [2010] EWCA Civ 18 (Court of Appeal) Judicial Review/ HRA challenge to the Social Security (Hospital In-patient) Regulations 2006 in so far as they remove any entitlement to non-contributory benefits from detained psychiatric patients who have been transferred from prison under s 47/ 49 MHA.

What the Directories say

Chambers & Partners, 2011

Doughty Street Chambers is seen as being very much on the up now that it has opened new offices regionally and made some sound lateral hires from other sets. It is a specialist claimant set that handles a greater volume of Human Rights Act cases than its rivals and fields numerous talented barristers. The individuals on offer are known for their collaborative approach, sharing their knowledge well and supporting each other in the pursuit of their clients' causes.

Ian Wise QC focuses on children's civil liberties and has acted in a number of landmark cases involving children in detention and in the care of local authorities. He recently acted in the notable children's rights House of Lords cases of G v Southwark (the responsibilities of housing and social service departments to 16 and 17-year-olds) and A v Croydon (how to resolve a dispute over the age of a young person claiming to be a minor). "Outstanding and tenacious" new silk Martin Westgate QC regularly acts in judicial review applications and statutory appeals in the areas of housing and social welfare, discrimination and medical law.

Paul Bowen has an excellent reputation for his work on civil liberties cases with healthcare, mental health or disability components, and is also an expert on prisoners' rights. Solicitors report that "he's in the law for the right reasons, as his values chime with those of the people he acts for." Kate Markus is a favourite in human rights cases in the areas of asylum support, children, community care, education, housing and mental health. Of late she has been acting in a number of high-profile control order challenges, attracting attention due to the high quality of her performances.

The popular Simon Cox focuses on immigration matters and has been busy on asylum and business cases raising complex national and EU human rights issues. "He has amazing knowledge and turns things around incredibly quickly," according to observers. Colleague Aswini Weereratne specialises in mental health and human rights, and has acted in recent cases looking at forced psychiatric treatment, deprivation of liberty under the Mental Health Act, and detention in prison without access to treatment. A new addition to the tables, Charlotte Kilroy acts on a number of terrorism and human rights cases and is highly rated as "a junior who's going places." The same could also be said of Azeem Suterwalla, who focuses predominately on human rights judicial review cases. He was led by Ian Wise QC in the Lords on cases raising significant children's rights issues. Solicitors say he is "excellent on the papers and has a great grasp of the issues."

 

Legal 500, 2011

The clerks at Doughty Street Chambers are 'fantastic and really obliging'. The barristers 'stand out for their thorough knowledge of the law and because their first thought and focus is to ensure that the client's needs are met'. Heather Williams QC is 'meticulous, incisive and compelling', while Kate Markus has a 'dedication to preserving the rights of vulnerable people, and are never afraid to explore interesting legal arguments'. Paul Bowen has 'a well-earned reputation for intellectual incisiveness'. Stephen Cragg is 'a genius - super knowledgeable and very talented'. Philippa Kaufmann is 'phenomenally bright and enthusiastic. She is hardworking and imaginative in the way she approaches a case'. Nick Stanage is 'charismatic and knows how to get the best out of the client on the stand, and the worst out of the defendant in cross-examination'